Vendor Purchase Order Terms and Conditions

These terms and conditions will apply to sales of all products and/or services pursuant to all purchase orders (“Purchase Orders”) submitted by Zilla, LLC, an Ohio limited liability company (“Zilla”), to the Seller thereof (”Seller”), unless otherwise agreed upon by Zilla and Seller (collectively, referred to herein as the “Parties”) in writing. The Parties agree as follows:

 

  1. General. Upon acceptance of a Purchase Order by the Seller identified on the Purchase Order, the provisions set forth in the applicable Purchase Order (the “Purchase Order”) and these terms and conditions (collectively, referred to herein as the “Agreement”) will be legally binding upon the Parties. Further, upon acceptance of Purchase Order, Seller agrees to provide to Zilla all products and/or services set forth in the Purchase Order (collectively, the “Deliverables”), and Zilla agrees to pay Seller the Purchase Price (defined below) in accordance with this Agreement.

 

  1. Electronic/Facsimile Transmission. If the Purchase Order is transmitted by electronic mail or by other means of electronic transmission, such transmission will constitute a duly executed original delivered to the Seller, and acceptance of the Purchase Order by Seller may be transmitted to Zilla by electronic mail, or by other means of electronic transmission, and such transmission will constitute Seller’s acceptance of the Purchase Order.

 

  1. Delivery. Seller will deliver the Deliverables at such place or places as specified by Zilla in the Purchase Order, or if not stated therein, then at Zilla’s address specified on the Purchase Order. Seller will be solely responsible for all delivery charges, unless otherwise specified in the Purchase Order. Seller will deliver the Deliverables in accordance with the delivery schedule specified in the Purchase Order, or if no delivery schedule is specified, then as soon as commercially practical and in accordance with Seller’s standard delivery practices. Title to the Deliverables will pass to Zilla upon Zilla’s acceptance of the Deliverables after inspection of the same, as described below. In the event the Seller fails to deliver the Deliverables to Zilla in accordance with this Section 3, Zilla may, at its option, reject the Deliverables and terminate this Agreement without payment or liability.

 

  1. Invoices and Payment. As full consideration for the Deliverables to Zilla as provided herein, Zilla will pay to Seller the amount specified in the Purchase Order (the “Purchase Price”). Applicable taxes and other charges, including but not limited to shipping costs, duties, customs, tariffs, imposts and government imposed surcharges, will be stated as separate line items on Seller’s invoice. Seller will provide Zilla with a written invoice for the Purchase Order within thirty (30) days of delivery of the Deliverables, and such invoice must reference the applicable Purchase Order. Unless otherwise agreed upon by the Parties in writing, Zilla will pay each invoice in full within thirty (30) days of receipt.

 

  1. Risk of Loss & Destruction of Goods. Seller assumes all risk of loss of the Deliverables prior to receipt and acceptance by Zilla, as described below. If the Deliverables, or any portion thereof, are destroyed prior to Zilla’s acceptance, Zilla may, at its option, terminate this Agreement or require delivery of substitute Deliverables of equal quantity and quality and at the same price, and Seller will: (i) deliver such replacements as soon as commercially practicable; and (ii) pay all delivery costs associated therewith.

 

  1. Warranties. Seller represents and warrants that the Deliverables: (i) will conform to the specifications, instructions, drawings, requirements, standards, samples, or other descriptions set forth in the Purchase Order or other notice furnished or specified by Zilla (collectively, the “Specifications”); (ii) will be fit and sufficient for the purposes intended; (iii) will be merchantable, of good material and workmanship, and free from defect; and (iv) will meet the highest standards of the relevant industry. The warranties recited in this Agreement will be in addition to those implied by or available at law and will exist notwithstanding the acceptance by Zilla of all or a part of the Deliverables. Seller consents and agrees to honor the warranties set forth in this Section 6 to the end consumer of the Deliverables, as if such end consumer were Zilla.

 

  1. Inspection and Acceptance. Upon receipt of the Deliverables by Zilla, Zilla will have ten (10) business days thereafter (the “Inspection Period”) to inspect and evaluate the Deliverables. During such Inspection Period, Zilla will inspect the Deliverables to determine, in its sole discretion, whether such Deliverables conform to the Specifications. If Zilla determines that the Deliverables, or any part thereof, do not conform to the Specifications, Zilla may, at its option, reject any/all non-conforming Deliverables, and require that Seller: (i) promptly replace the Deliverables such that they conform to all the Specifications or foregoing warranties; or (ii) terminate this Agreement and/or any portion of the Purchase Order. In the event Zilla elects to terminate this Agreement, Zilla will notify Seller in writing of such election to terminate and promptly return, at Seller’s cost, all Deliverables in Zilla’s possession, and upon receipt of such notice and the Deliverables, Seller will immediately refund all amounts previously paid by Zilla for the Deliverables, including all applicable shipping costs incurred by Zilla in returning such Deliverables. In the event Zilla requires Seller to replace any non-conforming Deliverables, Zilla will provide written notice of the same to Seller, and upon receipt of such notice, Seller will promptly replace such non-conforming Deliverables without expense to Zilla. If Seller fails to correct defects or replace any/all nonconforming Deliverables in accordance with this Section 7, Zilla, at its option, may replace such non-conforming Deliverables through other vendors, and Seller agrees to be liable for all costs incurred by Zilla for such replacements and any related delays.

 

  1. Change Orders. If changes to the Specifications or quantities of the Deliverables, as the case may be, are required by Zilla, such change order must be submitted to Seller in writing (a “Change Order”) prior to delivery. Upon receipt of a Change Order in accordance with this Section 8, Seller will make every reasonable effort to accommodate Zilla’s change request and will, prior to delivery, provide written notice to Zilla of any additional charges or changes in the Purchase Price that may result due to such Change Order.

 

  1. Indemnity. Seller agrees to indemnify, defend, and hold harmless Zilla, its owners, directors, officers, employees, customers, and agents (“Indemnitees”) from and against all loss, liability, cost, damage, or expense whatsoever, including but not limited to reasonable attorney’s fees, incurred by or alleged against Indemnitee’s as a result of Seller’s breach of this Agreement. This Section 9 will survive termination of this Agreement for any reason.

 

  1. Confidentiality. In connection with this Agreement, Seller may acquire Zilla Confidential Information (as defined below) and agrees to keep such Zilla Confidential Information in confidence during and following termination or expiration of this Agreement. For the purposes of this Agreement “Zilla Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, and other material or information considered proprietary by Zilla relating to the current or anticipated business or affairs of Zilla which is disclosed directly or indirectly to Seller. In addition, Zilla Confidential Information means any third party's proprietary or confidential information disclosed to Seller by Zilla during the performance of this Agreement. Zilla Confidential Information does not include any information: (i) which Seller lawfully knew without restriction on disclosure before Zilla disclosed it to Seller; (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller; (iii) which Seller developed independently without use of the Zilla Confidential Information, as evidenced by appropriate documentation; or (iv) which is hereafter lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Confidential Information which is required to be disclosed pursuant applicable law or as expressly authorized by Zilla prior to such disclosure.

 

  1. Force Majure. Zilla will not be liable for any failure to take delivery of or accept the Deliverables due to circumstances beyond Zilla’s control, including but not limited to, acts of God, fire, flood, acts of war, government action, accident, delay in transportation, labor trouble, or partial or complete suspension of Zilla’s operations. In the event Zilla is so excused, either Party hereto may terminate the Agreement, and upon such termination, Seller will refund all payments remitted by Zilla to Seller.

 

  1. Severability. If any provision of this Agreement will be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

 

  1. Limitation of Liability. IN NO EVENT WILL ZILLA BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT SELER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. In no event will Zilla be liable to Seller or any third party for damages for loss of business or business profits, business interruption, or any other pecuniary loss in connection with or arising out of this Agreement. Notwithstanding the above, in no event will Zilla’s liability to Seller or any third party under this Agreement exceed, in the aggregate, the cost of the Deliverables purchased pursuant to the applicable Purchase Order(s). Any action resulting from any breach on the part of Zilla must be commenced within one (1) year after the cause of action has occurred.

 

  1. Assignment; Waiver. The Parties may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of the other. Any assignment or transfer without such written consent will be null and void. This Agreement will inure to the benefit of, and be binding upon, the successors and assigns of the Parties without restriction. The failure of any Party hereto to enforce at any time any of the provisions of this Agreement will in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part thereof or the right of any Party thereof to enforce each and every such provision. No waiver of any breach of this Agreement will be held to be a waiver of any other or subsequent breach.

 

  1. Notices. All notices and other communications required hereunder must be in writing, and may be delivered via regular mail, certified mail, facsimile transmission, or electronic transmission. Delivery of notices hereunder will be considered to occur upon receipt of the intended recipient.

 

  1. Survival of Obligations. Unless otherwise indicated in this Agreement, all obligations and duties set forth in this Agreement will survive the consummation of the transaction contemplated herein or expiration or termination of this Agreement.

 

  1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to any choice or conflict of law provisions. The parties hereto agree that the exclusive venue to resolve any legal dispute will be the courts located in Franklin County, Ohio and consent to the jurisdictions thereof.

 

  1. Attorneys Fees. If it becomes necessary to bring suit to enforce any provision of this Agreement, the prevailing party will be entitled to recover, in addition to any other award, its reasonable costs incurred in connection therewith, including court costs and attorney’s fees. For purposes of this Agreement, “prevailing party” means, for any proceedings, the Party in whose favor an award is rendered, except that if in those proceedings the award is rendered in favor of one Party on one or more claims or counterclaims and also in favor of the other Party on one or more other claims or counterclaims, neither Party will be the prevailing party.  If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither Party will be the prevailing party in those proceedings.

 

  1. Entire Agreement; Modification. This document contains the entire agreement between the Parties and supersedes any prior or contemporaneous discussions, negotiations, representations, or agreements between them relating to the Deliverables. This Agreement may not be varied, modified, altered, or amended except in writing, including the Purchase Order or any subsequent Change Order, signed by the parties hereto.